OPINION No. 3/2007 (EGYPT) Communication: addressed to the Government on 5 December 2006. Concerning: Ahmed Ali Mohamed Moutawala and 44 other persons.

The State is a party in the International Covenant on Civil and Political Rights.

1. (Same text as paragraph 1 of Opinion No. 32/2006.)

2. (Same text as paragraph 3 of Opinion No. 32/2006.)

3. The Working Group regrets the lack of cooperation of the Government despite repeated invitation to provide information on these cases. Yet, the Working Group believes that it is in a position to render an opinion on the facts and circumstances of the case.

4. The source reports that the following 45 persons were arrested between 1990 and 1994 by agents of the State Security Intelligence (SSI). They were held incommunicado during periods from one to three months, periods during which they were allegedly tortured. The officials did not show any arrest warrant or other relevant decision by a public authority, nor did they orally inform them about the reasons for arrest. They continue to be kept in detention.

50. At the end of their incommunicado detention, these persons were informed that they would be imprisoned by virtue of an administrative order issued by the Minister of the interior. No detention term was fixed. These administrative orders were issued following the regulations on the state of emergency, which has been in force without interruption since 6 October 1981. The emergency rule was extended on 30 April 2006 for another three years.

51. According to the source, the Emergency Law, Law No. 162 of 1958, allows arbitrary arrest and indefinite detention without trial. The source considers that it creates an atmosphere of impunity, which may give place to cases of torture and ill-treatment.

52. The source adds that some of these persons were nonetheless able to challenge their detention before a judicial authority, mainly before the Exceptional State Security Courts or military courts, which, in most cases, ordered their release. However, the administrative authority did not comply with these judicial decisions and issued new administrative detention orders using the powers conferred on them by the state of emergency.

53. The source alleges that in spite of the fact that Egypt is a State party to the International Covenant on Civil and Political Rights, it has never followed fully their provisions by reason of the state of emergency governed by article 4 of the Covenant.

54. According to the source, these persons are being kept in detention without charges or trial exclusively under administrative detention powers. They have never been tried or convicted of a crime. Some of them are suspected members or supporters of banned Islamist groups but have never participated in violent acts, otherwise they would have been brought before military or exceptional courts and would have been charged and tried.

55. The source adds that the conditions in the prisons and detention centres in which these persons are being kept amount to cruel, inhuman or degrading treatment. Many of these persons are suffering from illnesses because of the lack of hygiene and medical care, overcrowding and poor food quality.

56. The source concludes that the detention of these persons is arbitrary because it is devoid of any legal basis. The authorities have so far failed to provide any decision justifying their arrest and continued detention during more than 12 years.

57. It also argues that their detention results from their political opinions and the consequent exercise of their rights to freedom of expression, guaranteed by article 19 of the Universal Declaration of Human Rights and of the International Covenant on Civil and Political Rights.

58. In conclusion, the source considers that the detention of these 45 persons is contrary to several articles of the International Covenant on Civil and Political Rights.

59. The Working Group notes at the outset that, despite the lack of cooperation from the Government, it possesses sufficient factual elements to take a position on the merits of the allegation. It is undisputed that the 45 individuals carefully identified by name, age and date of detention, were arrested between 1990 and 1994 and are still in detention. That is to say that they have been detained for between 13 and 17 years. Most of them were unable to challenge the lawfulness of their detention. Some of them could obtain a judicial decision ordering their release, but no one was in fact set free.

60. It is the position of the Working Group that not even a state of emergency may justify such long terms of detention without charges which completely circumvents the guarantees of a fair trial. Moreover, by failing to allow the detainees to apply to a judge or, in those cases where the detainees could seek review of their detention, by disregarding the judicial orders for release, the Government has nullified the control of the Judiciary over the lawfulness of their detention. Therefore, the Working Group, in the absence of any response from the Government, considers that the deprivation of liberty of the above-mentioned persons is arbitrary under category III of the categories applicable to the consideration of cases submitted to the Working Group.

61. The Working Group further notes that the source’s allegation that the 46 detainees have been deprived of their liberty for having expressed their political opinions which are contrary to the Government has not been contradicted. The Working Group therefore finds that the deprivation of liberty results from the exercise of their right to freedom of expression, guaranteed by article 19 of the International Covenant on Civil and Political Rights, and is accordingly arbitrary also under category II of the categories applicable to the consideration of cases submitted to the Working Group.

62. In the light of the foregoing the Working Group renders the following opinion:

The deprivation of liberty of Ahmed Ali Mohamed Moutawala and the other above named 44 persons is arbitrary, being in contravention of article 9 of the International Covenant on Civil and Political Rights and falls under categories II and III of the categories applicable to the consideration of cases submitted to the Working Group.

63. Consequent upon the opinion rendered, the Working Group requests the Government to remedy the situation and to bring it into conformity with the provisions of the International Covenant on Civil and Political Rights. The Working Group believes that in view of the long period of time already spent in detention, the adequate remedy would be the immediate release of these persons.